[Blogger’s note: Today’s guest blog is by my friend and scholarly colleague, Nathan Waxman. Nathan revisits an issue he first considered eight years ago in this space when he bemoaned the increasingly poor quality of ethnically authentic food in New York City, and laid the blame upon our immigration laws. Having suffered through several more years of culinary displeasure, and at last seeing a glimmer of hope for immigration reform, Nathan now offers an analysis of the current immigration mess and an enlightened solution.]

A guest blog by this author in April 2005 (“Is That Chipotle in My Sushi?”) reported on the adverse interplay of two laws: the 1996 enactment of Immigration and Nationality Act (INA) § 212(a)(9) and the sunsetting of INA § 245(i) in April 2001. That post noted how the rapidly proliferating small-to-medium sized, and particularly family-owned, ethnic restaurants were coping, largely unsuccessfully, with the distasteful consequences of Congress’s enactment of § 212(a)(9), the “unlawful presence” bar of up to ten years prohibiting the grant of permanent residence to most aliens who have tallied more than 12 months of unauthorized stay in the United States. To add to the dyspepsia, Congress had failed to renew a 1994 law, the temporary but vital remedy of § 245(i), which allowed qualified immigrants who had failed to maintain legal status nonetheless to obtain a green card in the U.S. through adjustment of status.

Thai restaurants can be found on the remote eastern shore of Virginia, just miles from the island home of the fabled wild ponies of Assateague. Indeed, once concentrated in major urban centers, Thai and Vietnamese (especially pho) restaurants are now nearly as common as pancake houses in small-town middle America.

Taquerias increasingly outnumber diners and “greasy spoons” along the highways and byways of America, from Alabama to Oregon.

Ethiopian and other African cuisines have escaped the gravitational pull of coastal urban centers and can be found in medium-sized cities and suburbs throughout the country.

Regional Indian and Chinese food has penetrated small-town America, and fusion restaurants have burst out of the urban bubble and are thriving in smaller cities and towns throughout the country.

So who is browning the pungent Indian fenugreek and stewing the fiery Ethiopian doro wat?

In 2005, restaurant owners were already recruiting staff of heterogeneous ethnicity from the available populations of experienced work-authorized kitchen crew. However, at the time of the 2005 blog post, few foresaw that the number of people seeking third employment-based preference immigrant visas would cause a persistent retrogression of the quota and in turn would be as toxic as a poorly-filleted fugu by virtually eliminating labor certification and immigrant visa sponsorship as viable options for filling permanent positions in the ethnic restaurant industry.

Clearly, the malaise of 2005 has deteriorated into a debilitating chronic condition for small-to-midsized local restaurants serving ethnic cuisines.

Skilled advocacy, when the facts are right, can enable elite restaurants, ethnic or otherwise, to use such nonimmigrant visa categories as H-1B, E, L-1 or O-1 visas, or the EB-1 or EB-2 immigrant mechanisms, to secure the services of a rarefied stratum of culinary professionals or managers. However, the typical independently-owned ethnic restaurant, whether in the America's Heartland or in an emerging urban neighborhood, cannot ethically or practically avail itself of these more difficult nonimmigrant visas or, indeed, of equally challenging immigrant visa sponsorship these days.

The four case scenarios below show how the inadequacies of U.S. immigration law have made it increasingly difficult for small-to-medium sized ethnic restaurants to staff their kitchens with qualified workers who can please demanding restaurant patrons seeking the best in ethnic cuisines.

A pioneering authentic Thai restaurant in the Chicago area

A Thai couple has run several authentic Thai cuisine restaurants on Chicago’s north side and in Chicago’s northern suburbs since the early 1980s. While the owners obtained residence in the early 90s using the L-1A / EB-1(3) two-step that lets experienced multinational managers or executives become permanent residents as managers or executives of a U.S.-based business, few small ethnic restaurants today can successfully rely on an intracompany transfer. In the ensuing years, their family-style restaurants won accolades by using fresh and authentic Thai ingredients, and they sponsored several chefs who invoked the clemency afforded by the now virtually dead § 245(i).

Since 2005, our restaurateurs have tried, unsuccessfully, to recruit qualified Thai cuisine chefs from the U.S. worker population. While labor certifications in 2005 (prior to the implementation of the U.S. Department of Labor’s PERM online program in that year) were mired in the Department’s mismanaged attempt to reduce backlogs, the employment third preference for other than China and India was generally current.

Ironically, not long after the implementation of PERM, around the time of our last blog, retrogression set in and has steamrolled to the point that Worldwide EB-3 is more than six years backlogged. Thus, the Thai restaurateurs in Chicago, though close to retirement, remain trapped in the kitchen. They are faced with the impossible dilemma of waiting six or more years to bring a chef over from abroad or, on the other hand, risking employer sanctions in the futile attempt to obtain permanent residence for a non-work-authorized, albeit qualified, domestic employee. They are fully aware that, without Congressional reinstitution of § 245(i), or amendment of § 212(a)(9) to provide realistic opportunities for exemption from the draconian 10-year bar, labor certification would be a colossal waste of resources and time.

An Armenian restaurant in a working-class New Jersey town

In 2003, the owner-operator sponsored a chef who had been grandfathered under § 245(i) and who left employment for greener pastures while awaiting certification of his pre-PERM labor certification.

Unable to recruit a qualified chef domestically, the owner substituted a chef who was working in the capital and largest city of Armenia, Yerevan. After overcoming numerous tribulations, in 2011 the substitute chef finally appeared before the U.S. Consulate in Yerevan. The Consul, however, requested additional financial documentation and proof that the sponsoring restaurant still existed and still intended to employ the beneficiary. Sadly, the sponsoring restaurant had fallen on hard times in the small north Jersey town of privately owned homes, half of which were underwater on their mortgages. The Consul denied the visa and returned the file to U.S. Citizenship and Immigration Services for a recommended revocation. Ironically, the owner, himself a chef of modest skill who had been doing the cooking since the original beneficiary left six years previously, attributed the failure of his business not just to the decline of the town, but to his inability to hire a chef well versed in the nuances of authentic Armenian cuisine.

A pricey Mughlai tandoori restaurant in Manhattan’s East 50s

A restaurant dedicated to preserving luxe Delhi-style tandoori (clay oven) traditions sought the services of a highly skilled chef working at a 5-star tandoori palace in Delhi, India. Like the unsuccessful Armenian chef in Yerevan, the tandoori chef had never been to the United States. The restaurant in New York filed a labor certification in early 2003. A full decade later, the restaurant, which has undergone several changes in management, still awaits a visa appointment in light of the decades-long Indian EB-3 green card backlog. The restaurant has made do with moderately skilled chefs, including one whose original training had been at a brick oven pizzeria, but the results are less than stellar. Tandoori calzone, anyone?

A Chinese restaurant in the northernmost county of Maine

Disclaimer: I have never represented Mai Tai restaurant in Presque Isle, Maine, nor have I eaten there. However, I had heard of it even prior to its moment of infamy, when it was featured in ICE’s November 15, 2012 press release trumpeting Mai Tai’s payment of $13,744 for Form I-9 (Employment Eligibility Verification) employer-sanction violations. I was familiar with Mai Tai because I have visited several Chinese nationals, clients of mine, who teach at the Presque Isle campus of the University of Maine (UMPI), located a few blocks down US 1 from Mai Tai.

Notwithstanding Mai Tai’s hokey 1950s-esque name, my clients at UMPI assured me that the beleaguered restaurant presented a pretty decent North American version of Chinese food, and was one of the only places in town where you can get green vegetables. Presque Isle, after all, is deep in the north woods of Maine and far from the clambakes and lobster pots of cozy Kennebunkport.

While we cannot be sure what motivated Mai Tai to transgress the laws against hiring the unauthorized, it’s easy to imagine how challenging it must be to hire specialty chefs in that land of doughnuts, mooseburgers and French fries. While not as backlogged as India’s EB-3, China’s EB-3 is still set back well over six years. We lack reliable statistics on the longevity of newly established independent restaurants in Presque Isle, but a casual stroll down Third Avenue in Manhattan will confirm that the life expectancy of newly established non-franchised ethnic restaurants in the U.S. is much less than the half-life of plutonium. The fact is, most restaurants cannot wait six years, much less six months, to on-board a qualified chef.

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In my 2005 post, I complained that § 212(a)(9)’s sting and § 245(i)’s demise were depriving the food-lovers among us of faithful representations of traditional ethnic dishes, whether they may be Venezuelan arepas (corn cakes) or Finnish pasties (meat- and vegetable-filled pastries). Now we must suffer unpalatable visa backlogs in the employment-based third preference.